BCL Law Notes Comparative Public Law Notes
A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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Legitimate Expectations
Comparison — Schonberg
Generally
UK legitimate expectations EU legitimate expectations
Narrow conception of objectively reasonable expectations
Deference to administration’s balancing of public<>individual interests
In all 3 systems, very little protection for ultra vires representations
In EU & France, reasonable protection for ultra vires {4} decisions but none for {1-3} representations
In UK, essentially similar protections for decisions & representations, but very weak
French system doesn’t have doctrine of LE but fills with equality, damages, and other doctrines
But patchwork of doctrines still produces unfairness
Seems like resistance to ‘balancing’ or discretionary approaches by the court — but given searching review of fact & law, seems unjustified
Suggestions for reform
—lawful representations
UK — replace Wednesbury unreasonableness with proportionality approach to determining whether has been abuse of power
Raises some issues with parliamentary sovereignty in UK
Also argument from judicial competence — judges in UK recruited from the bar instead of from civil servants in France — not as well placed to make policy determinations?
BUT civil servants aren’t elected either — at least judges have some democratic legitimacy via appointment
Coughlan approach of balancing is more suitable than proportionality (requires identification of suitability, necessity & overall balance)
—ultra vires representations
Representations shouldn’t be disregarded simply because ultra vires
IE legality is countervailed by other considerations
Balancing approach of EU re ultra vires decisions could be more broadly applied
Consider utilisation of damages as in France as alternative
UK
Historical context of deference
Constitutional source of deference — parliamentary sovereignty
Representations {1}–{3} historically governed by various principles: estoppel, Wednesbury unreasonableness, abuse of process, and now legitimate expectations (substantive and then procedural)
Only relatively recently that debate resolved on whether LE has a place, whether extends to substantive LEs, and if so whether substantive LE is independent from or just a head of unreasonableness
Traditionally characterised by level of deference to administrative administration
Not for the courts to balance policy
Manifestations
Narrow — LE just a head of W unreasonableness — Hargreaves (change in prisoners release policy)
Less narrow — will only interfere if disappointing expectation amounts to abuse of power — Preston (IRC resiling from interest relief deal = abuse of power)
Only post-Coughlan that willing to take broader view
Hamble Fisheries rejected as ‘heresy’ in Hargreaves; but Hargreaves distinguished in Coughlan as general shift in policy
Still manifested in reluctance to venture into {4} general shifts in policy
Other means of solving problem
Abuse of process — criminal prosecution may be rejected if clearly unfair eg because of delay or if prosecution represented that would not proceed
Dean (youth treated as witness, assured would not be prosecuted, assisted police — then prosecuted abuse of process)
France
{4} Decisions <> {1-3} Representations
Decision = acte administrative — binding subject to principle of intangibilité
Binding if lawful & constitutive of rights (créatrice de droits)
If unlawful & constitutive, binding once 2-month time-limit passes
Representation = faits juridiques (legally relevant facts)
Administration may have to compensate loss, but not obliged to honour representations
Similar justification to UK — flexibility of executive & legality of government: Compagnie franco-algérienne
EG Bouveret (quit job in reliance on representation of employment liable to damages but not binding)
Doctrine of LE directly rejected — Rouquette (1999)
Creative inferior TAs had attempted but stamped out by CE
Subject to general principle of equal treatment (égalité de traitement)
Applies mainly to {2} departure from policy in particular case
Contextual reasons for rejecting LE
Freedom of administration deeply embedded — recognised itself as a principe generaux — LE would be inconsistent
French public law prefers defined rules
Akin to codification
In relation to {4} injustice created by ultra vires rule restricted by time limit rather than discretionary balancing
Courts don’t give long reasoned judgments that lend themselves to balancing factors
Other methods of compensating for lack of LEs
Statutory provisions in tax & planning
Generous principles of administrative liability to damages (notably absent in UK context) — individuals will be compensated so don’t need to enforce LE
French droit administratif = independently developed by courts
Unusual for France
Resistant to external influence by EU/UK
Rejection of doctrine of confiance légitime
Principle recognised by TA Strasbourg in Entreprise Transports Freymuth (1994)
F imported refuse from Germany
1975 law provided for prohibition of refuse by agreement between States
1990 regulation introduced need for authorisation for import – but did not prohibit any particular category
F obtained authorisation
1992 regulation prohibited importation of certain categories of refuse
Exception allowed importation provided there was a scheme for sale & disposal, but no such scheme in place at the time
F claimed loss of 1/3 of profits & sought damages
HELD
TA — Breach of legitimate expectation – that 1990 regulation would not be suddenly changed with immediate effect & without transitional provisions
Nancy CAA — did not “destroy any hope” or any “promise” but merely ended danger to environment for reasons of public interest — but didn’t disavow principle in whole
Stamped out by CE in Rouquette (1999) (social security change — LE arose only if implementing EU law — no reference to such a principle in French law)
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A collection of the best BCL notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through applications from outstanding students with the highest results in England and carefully evaluating each on accuracy, formatting, logical structure, spelling/grammar, conciseness and "wow-factor". In short, these are what we believe to be the strongest set of BCL notes available in the UK this year. This collection of notes is fully updated for recent exams, also making them...
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